1. The cap on nonpecuniary damages mandated by K.S.A. 60-1903(a) is a limit on the
amount of damages that can be recovered in a wrongful death action and not the measure
of the damages sustained.

2. In applying K.S.A. 60-258a in a wrongful death action, the percentage of fault attributable
to a defendant is applied to the court or jury award for nonpecuniary damages and not to
the maximum recovery allowable under K.S.A. 60-1903(a).

3. Where the jury award for nonpecuniary damages attributable to the defendant exceeds the
cap mandated by K.S.A. 60-1903(a), the court shall enter a judgment against the
defendant for nonpecuniary damages in an amount equal to the maximum allowable under
K.S.A. 60-1903(a).

4. A settlement with a defendant who might be held liable for a proportional share of the
damages for wrongful death has no effect on the plaintiff's right to recover judgment as set
out in Syllabus ¶ 3.

Randall E. Fisher, of the law office of Randall E. Fisher, of Wichita, argued
the cause and was on the
briefs for appellants/cross-appellees.

William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington,
P.A., of Wichita, argued the cause
and Scott E. Sanders and David L. Vogel, of the same firm were with
him on the briefs for appellees/cross-appellant.

The opinion of the court was delivered by

ALLEGRUCCI, J.: This is a personal injury and wrongful death action filed by Albert and
Forestean Adams, the parents of Nichelle Adams, who died as a result of a ruptured ectopic
pregnancy. The parents sued St. Francis Regional Medical Center, now known as Via Christi
Regional Medical Center, and Dr. Linus Ohaebosim. The parents settled all their claims against
the hospital for $170,000. The parents' action against Dr. Ohaebosim proceeded to trial, and the
jury returned a verdict in favor of the parents. The jury's nonpecuniary wrongful death damage
award was for $1,800,000. Because the parents already had received the statutory limit on
wrongful death damages as settlement proceeds from the hospital, the trial court entered no
judgment against Dr. Ohaebosim for wrongful death damages. The parents appeal from the trial
court's entry of judgment. Dr. Ohaebosim cross-appeals on liability issues. The case was
transferred to this court pursuant to K.S.A. 20-3018(c).

In July 1992, Nichelle Adams was 22 years old and was living with her parents and her
younger sister. On July 22, Mrs. Adams got home from work at approximately 8:40 p.m. to find
that Nichelle had been complaining about her stomach and had gone to bed. Mrs. Adams was
concerned because Nichelle generally was a very active person.

Dr. Ohaebosim, an osteopath, who had been a family practitioner for 22 years, had been
the family physician for Mr. and Mrs. Adams and their three children for several years. He had a
patient file on Nichelle, but he had not seen her in his office since 1988. On July 6, Nichelle
completed a form for Planned Parenthood in which she answered "no" to the question "Do you
have a family physician?" Dr. Ohaebosim continued to provide medical care to other members of
the family. Mrs. Adams had gotten medical advice from Dr. Ohaebosim over the telephone on a
number of occasions.

Until 1990, Dr. Ohaebosim included as part of his family practice the treatment of women
through pregnancy, labor, and delivery. He delivered over a thousand babies. After 1990, he
continued to treat pregnant women for nonpregnancy-related conditions and to make the
determination for women that they were pregnant, but he referred women to other practitioners
for prenatal care, labor, and delivery. Dr. Ohaebosim testified about sending a letter to his
patients to advise them that he would no longer be providing obstetrical care. He also testified
that he advised all the hospitals, "I don't deliver babies any more." He further stated, "This is my
notice written. I'm writing to inform you that I would cease delivering babies on January, 1990,
on the 1st of January, 1990." Mrs. Adams testified that she did not receive a letter from the
doctor advising that he no longer offered obstetrical care. She was unaware that Dr. Ohaebosim
had eliminated obstetrical care from his practice.

At approximately 9 p.m. on July 22, Mrs. Adams called Dr. Ohaebosim. She got his
answering service, and then the doctor called Mrs. Adams right back. She told Dr. Ohaebosim
that Nichelle was 5 to 8 weeks pregnant and was experiencing abdominal pain. Mrs. Adams later
told a doctor at the hospital that she mentioned shortness of breath to Dr. Ohaebosim in the
telephone conversation, but Dr. Ohaebosim later denied it, and at the time of trial Mrs. Adams
could not remember telling him anything other than Nichelle was pregnant and had abdominal
pain.

Dr. Ohaebosim testified that 8 weeks is the typical time when an ectopic pregnancy
becomes symptomatic because the fetus becomes too large for the fallopian tube. When Mrs.
Adams told Dr. Ohaebosim of Nichelle's condition, he did not suspect that Nichelle might have an
ectopic pregnancy.

Based on his previous experiences with Mrs. Adams, he expected her to be thorough and
matter-of-fact in describing whatever medical condition she called him about. According to Dr.
Ohaebosim, Mrs. Adams did not express urgency or serious concern when she called him on July
22.

Dr. Ohaebosim testified that he told Mrs. Adams that abdominal pain is not abnormal
during pregnancy but to take Nichelle to the emergency room if she got any worse. He also told
her to have Nichelle see a doctor the next day. Mrs. Adams testified that Dr. Ohaebosim did not
mention taking Nichelle to the emergency room, but that he did say to bring her into his office the
next day. Dr. Ohaebosim and Mrs. Adams agreed that he did not ask her any questions about
Nichelle's condition.

At approximately midnight, Mrs. Adams drove Nichelle to the hospital, where she was
admitted into the emergency room at 12:25 a.m. on July 23. By the time Nichelle was taken into
an examining room, she was agitated and thrashing around. While Mrs. Adams was alone with
Nichelle in the examination room, Nichelle vomited. Mrs. Adams called for help, and, when
hospital personnel took over Nichelle's care, Mrs. Adams was taken to a nursing station to call her
husband. Mrs. Adams testified that she was taken by surprise because she "just didn't expect all
this to unfold. It just unfolded so fast." Before her husband arrived at the hospital, Mrs. Adams
was told that Nichelle had gone into cardiac arrest. Later she was told that Nichelle was being
taken to surgery.

Dr. Ohaebosim was not contacted with regard to Nichelle until approximately 4 p.m. on
July 23. He immediately went to the hospital. Nichelle was on life support systems and
nonreactive to the light Dr. Ohaebosim shined in her eyes. He discussed Nichelle's condition with
her family, and at approximately 6:30 p.m. she died after being removed from the support systems
pursuant to her family's decision. There was evidence that Nichelle might have lived if she had
received medical care at 9 or 9:30 p.m. on July 22, instead of after midnight.

Mr. and Mrs. Adams, individually and as administrators of the estate of Nichelle Adams,
sued St. Francis Regional Medical Center and Dr. Ohaebosim. Mr. and Mrs. Adams settled with
the hospital for $170,000. They proceeded to trial against Dr. Ohaebosim. The jury found Dr.
Ohaebosim 90% at fault and the hospital 10% at fault. The jury found that a physician-patient
relationship existed between Nichelle Adams and Dr. Ohaebosim on July 22, 1992. The jury
determined the following damages:

The total damage award was $2,015,000. $200,000 of the award to Nichelle's estate was for
pain
and suffering. In 1992, K.S.A. 60-1903(a) placed a cap of $100,000 nonpecuniary damages in a
wrongful death action.

The trial court's journal entry of judgment states:

"The plaintiffs Albert and Forestean Adams are entitled to recover a maximum of
$100,000 for non-economic damages and $15,000 for economic damages for their wrongful
death cause of action. The plaintiffs having previously recovered $170,000 for their wrongful
death cause of action, the plaintiffs take no judgment against the defendant for their wrongful
death claim. The jury having awarded the Estate of Nichelle Adams $200,000 for pain and
suffering prior to her death, after application of the jury's findings of fault, the Estate of Nichelle
Adams is entitled to Judgment against the defendant in the amount of $180,000."

We first determine if the district court erred in denying recovery of any wrongful death
damages from Dr. Ohaebosim. The particular question presented by this case has not yet been
considered by a Kansas appellate court. It involves statutory interpretation and is a question of
law over which the court has unlimited review. Sebelius v. LaFaver, 269 Kan. 918,
920, 9 P.3d
1260 (2000).

The parents' position is that extension of settled comparative negligence principles to their
circumstances requires reversal of the trial court's ruling. In Geier v. Wikel, 4 Kan.
App. 2d 188,
603 P.2d 1028 (1979), the court considered what effect a claimant's release of one person or
entity
would have on claimant's right to recover from others. One Geier son was killed and one injured
in a car-train collision. The Geiers gave unconditional releases to the railway company. Wikel,
the
driver of the car, filed a motion for summary judgment, which the trial court granted on the
common-law joint and several liability theory that the release of one joint tortfeasor releases all.
The decision in Geier dispelled the notion that the concept of joint and several liability
survived the
legislature's enactment of the comparative negligence statute, K.S.A. 60-258a. The Court of
Appeals declared:

"An injured party whose claim for damages is exclusively subject to the Kansas
comparative
negligence statute may now settle with any person or entity whose fault may have contributed to
the injuries without that settlement in any way affecting his or her right to recover from any other
party liable under the act. The injured party is entitled to keep the advantage of his or her
bargaining, just as he or she must live with an inadequate settlement should the jury determine
larger damages or a larger proportion of fault than the injured party anticipated when the
settlement was reached. It follows that the type of release given will have no effect on any party
not specifically named in the instrument." 4 Kan. App. 2d at 190.

Thus, in the present case, the right of the parents to recover from the doctor was in no
way
affected by their settlement with the hospital, and the parents are entitled to keep the advantage of
their bargaining. The parents' position is that these principles necessarily remove the settlement
from operation of the statutory cap. Dr. Ohaebosim's position is that these principles were
announced in circumstances that did not include a statutory cap and, hence, are not conclusive in
the present case.

In McCart v. Muir, 230 Kan. 618, 619-20, 641 P.2d 384 (1982), the court
considered "the
nature and amount of damages allowable under the provisions of K.S.A. 60-1903." In that case,
three sets of parents claimed separate damages for the deaths of their children in an automobile
collision. The defendant was the surviving father of the driver who was at fault, and the theory of
liability was negligent entrustment. Plaintiffs settled their claims against the estate of Stephen
Muir
for undisclosed sums. At that time, K.S.A. 60-1903 limited aggregate wrongful death damages to
$25,000. No question was raised about whether the settlement with the son's estate ought to be
credited against wrongful death damages recovered from the father. The court did consider the
question that arose from the interplay between comparative negligence principles and the
statutory
cap on damages recoverable for wrongful death: "Should the percentage reduction of a claimant's
award as required by subsection (a) of K.S.A. 60-258a be applied to the statutory
limit specified in
K.S.A. 60-1903 or should it be applied to the total nonpecuniary damages awarded by the jury?"
230 Kan. at 629. Here is the court's discussion of this issue:

"For instance, suppose 30% fault is attributed to a decedent and in turn imputed to
the
claimant. Consider in that situation that the jury awards $100,000.00 nonpecuniary damages.
How is the actual amount allowable to be determined when you must consider the statutory
limitation of $25,000.00? Is the $25,000.00 to be reduced by the 30% fault which is attributed to
decedent and in turn imputed to claimant? If so, the tortfeasor's 70% fault will afford a judgment
for only $17,500.00. When 30% or $7,500.00 is subtracted from the $25,000.00 limit only
$17,500.00 remains. On the other hand, if the actual jury award for nonpecuniary damages of
$100,000.00 is to be reduced first by the 30% fault of the decedent and claimant, the result would
be $70,000.00. If this procedure is followed, the $25,000.00 maximum limit becomes the amount
for which the others who contributed to cause the death will be liable.

'In applying our comparative negligence statute, Minn. St. 604.01, in an action for
death
by wrongful act brought under Minn. St. 573.02, the percentage of plaintiff's decedent's
negligence is to be deducted from the damages awarded by the court or jury rather than from the
maximum permissible recovery permitted under § 573.02.'

"The federal district court for the district of Kansas in Benton v. Union Pac.
R. Co., 430
F. Supp. 1380 (D. Kan. 1977), in addressing this question, states:

'Accordingly, when the comparative negligence statute is called into play, we
cannot say
the wrongful death limitation was intended to be the measure of damages sustained. On the other
hand, it clearly is a limitation on the amount of damages recoverable. Under all the circumstances
we agree with the view expressed in Olson, that it is far more equitable to allow the
plaintiff the
opportunity to recover the statutory maximum than to further reduce her recovery. The injustice
of allowing a plaintiff whose decedent was contributorily negligent to perhaps recover as much as
a plaintiff whose decedent was not negligent seems slight, compared with the injustice of further
reducing plaintiff's recovery, when her maximum recovery is already far less than her actual
damages.' 430 F. Supp. at 1386.

'We are not faced with the question of how the wrongful death statute's limitation
interacts procedurally with the comparative negligence statute in this case. [Citations omitted.] It
should be noted [, however,] under our wrongful death statute, the death limitation is
not a
measure of compensation. Instead, it is simply a limitation upon recovery.'

"In applying the comparative negligence statute, K.S.A. 60-258a, in an action for
death
by wrongful act brought under K.S.A. 60-1901 et seq., the percentage of causal fault
attributable
to decedent's negligence plus the percentage of additional causal fault attributable to any direct
negligence of the plaintiff are to be deducted from the amount of damages awarded by the court
or
jury for nonpecuniary damages, rather than from the maximum permissible recovery for
nonpecuniary damages allowable under K.S.A. 60-1903. As to pecuniary damages awarded the
usual procedure for arriving at liability based on proportionate fault should be followed." 230
Kan. at 629-31.

Dr. Ohaebosim urges the court to consider this issue as a matter of his
receiving credit for
the amount the hospital paid to the parents in settlement. He cites York v. InTrust Bank,
N.A., 265
Kan. 271, 962 P.2d 405 (1998), a case involving intentional tort liability in which the court
considered credit for settlements. On appeal, this court prefaced its discussion of the trial court's
crediting the bank for the settlement amounts paid by other defendants by emphasizing that

The joint and several liability principles on which the court based its discussion and decision in
York have no application in the present case.

K. S. A. 60-1902 establishes who may maintain a wrongful death action. K. S. A.
60-1903(a) and (b) limit the amount of damages:

"(a) In any wrongful death action, the court or jury may award such damages as
are found
to be fair and just under all the facts and circumstances, but the damages, other than pecuniary
loss sustained by an heir at law, cannot exceed in the aggregate the sum of $100,000 and costs.

"(b) If a wrongful death action is to a jury, the court shall not instruct the jury on
the
monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss.
If
the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of
any
amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of
subsection
(a), the court shall enter judgment for damages of $100,000 for nonpecuniary loss."

K. S. A. 60-1904 specifies the elements of damage. K. S. A. 60-1905 provides for
apportionment of the recovery among the heirs according to the loss sustained.

Subsection (a) of 60-1903 authorizes a court or jury to award fair and just damages but
prohibits nonpecuniary damages from exceeding in the aggregate the sum of $100,000. The
legislature used the terms "award" and "damages," words associated with trials and verdicts. It
did not use the terms "proceeds" or "settlement." The legislature expressly limited damages "in
the
aggregate," which clearly shows the legislature's intent to aggregate the damage awards
attributable to co-tortfeasors, but the statute is silent as to settlement proceeds. Subsection (b) of
60-1903, too, is in trial terms. Subsection (b) comes into play if the jury verdict results in an
award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to
K.S.A.
60-258a and amendments thereto, exceeds the limitation of subsection (a). In that event, the
court
is required to enter judgment for nonpecuniary loss in the amount of the limit.

K. S. A. 60-258a provides in part:

"(a) The contributory negligence of any party in a civil action shall not bar such
party or
such party's legal representative from recovering damages for negligence resulting in death,
personal injury, property damage or economic loss, if such party's negligence was less than the
causal negligence of the party or parties against whom claim for recovery is made, but the award
of damages to any party in such action shall be diminished in proportion to the amount of
negligence attributed to such party. If any such party is claiming damages for a decedent's
wrongful death, the negligence of the decedent, if any, shall be imputed to such party.

"(b) Where the comparative negligence of the parties in any such action is an issue,
the
jury shall return special verdicts, or in the absence of a jury, the court shall make special findings,
determining the percentage of negligence attributable to each of the parties, and determining the
total amount of damages sustained by each of the claimants, and the entry of judgment shall be
made by the court. No general verdict shall be returned by the jury.

. . . .

"(d) Where the comparative negligence of the parties in any action is an issue and
recovery is allowed against more than one party, each such party shall be liable for that portion of
the total dollar amount awarded as damages to any claimant in the proportion that the amount of
such party's causal negligence bears to the amount of the causal negligence attributed to all parties
against whom such recovery is allowed." (Emphasis added.)

The comparative negligence statute requires that the percentage of fault attributable to
each
party be determined and limits each party's liability to its percentage of the total damage award.
Thus, it appears that the phrase, "after deduction of any amounts pursuant to K. S. A. 60-258a,"
in
subsection (b) of K.S.A. 60-1903 refers to any percentage of the total damage award for which
claimant is responsible due to imputation of the percentage of fault determined to be attributable
to
the decedent. It further appears that what remains after deduction of any percentage of the
damage award imputed to claimant is the "aggregate sum" to which the statutory cap is applied.

Neither K.S.A. 60-1903 nor K.S.A. 60-258a expressly takes the apportionment principles
or procedures beyond trial proceedings. This court has held that the comparative negligence
statute will not permit a jury verdict to be reduced by any amount plaintiff may have received in
settlement from other defendants. See Glenn v. Fleming, 240 Kan. 724, 732 P.2d
750 (1987).
Neither K.S.A. 60-1903 nor K.S.A. 60-258a expressly takes into account a settlement agreement
between a decedent's heirs and a tortfeasor. Moreover, the interpretation given to the statutes by
the trial court does not seem to be implied in the statutory language.

The cap specified in K.S.A. 60-1903 is not a measure of damages, but rather limits the
recovery of the damages awarded by a judge or jury. The percentage of fault is applied to the
jury's nonpecuniary damages award to determine the amount of damages attributable to a
defendant. Where the damages attributable to the defendant are in excess of the cap, the recovery
is limited to the amount of the cap.

In the present case, the Adams' settlement with the hospital has no effect on their right of
recovery from Dr. Ohaebosim. The Adamses are entitled to keep the benefit of their bargain with
the hospital. The jury verdict included an award of $1,800,000 to the parents for the
nonpecuniary
loss of their daughter. With no fault being attributed to decedent, there was no percentage
imputed to the parents to be deducted from the award. Applying the jury's apportionment of 90%
fault to the doctor to the $1,800,000 produces the figure of $1,620,000. The statutory cap
applies
to the award of $1,620,000, thus reducing the award to $100,000. The Adamses are entitled to a
judgment of $100,000 against Dr. Ohaebosim. Thus, the trial court erred in not granting the
Adamses a judgment of $100,000 for their wrongful death claim.

In the trial court and in this court, appellants contend that the statutory cap on wrongful
death damage awards is unconstitutional in that it impairs the right to trial by jury, violates due
process, and violates equal protection. The trial court declined to declare K. S. A. 60-1903
unconstitutional. In Leiker v. Gafford, 245 Kan. 325, 359-65, 778 P.2d 823 (1989),
overruled in
part on other grounds Martindale v. Tenny, 250 Kan. 621, 629, 829 P.2d 561 (1992), this
court
upheld the constitutionality of K. S. A. 60-1903 on all grounds raised by appellants in the present
case. Appellants ask the court to overrule that holding of Leiker. We decline to do
so.

In his cross-appeal, Dr. Ohaebosim first argues that he had no duty of care to Nichelle
Adams. The doctor raised the issue in the trial court by motion for judgment as a matter of law
and to reconsider the judgment. The trial court overruled the doctor's post-trial motions to
reconsider the judgment, for remittitur, and for new trial.

Whether a duty exists is a question of law. Nero v. Kansas State University,
253 Kan. 567,
Syl. ¶ 1, 861 P.2d 768 (1993). This court's review of a question of law is unlimited.

Dr. Ohaebosim contends that there was no physician-patient relationship between him and
Nichelle Adams on July 22, 1992, and that in the absence of a physician-patient relationship, no
duty arose.He relies on Michigan, South Carolina, Georgia, and Oregon cases
for the proposition
that the existence of a physician-patient relationship is a necessary prerequisite for medical
malpractice liability. He cites one federal case in which Kansas law was applied and a number of
cases from other states' courts but none from the courts of this state on the question of whether
he
had a physician-patient relationship with Nichelle Adams. None of the cases he cites involves
circumstances like those in the present case.

From the cases cited by the doctor and from other cases located in our research, certain
general principles may be drawn that govern situations in which the existence of a
physician-patient
relationship is in question. Those cases not cited elsewhere in this discussion are: Doran v.
Priddy, 534 F. Supp. 30 (D. Kan. 1981) (obstetrician declined request of hospital nurse to
intervene in patient's care in absence of patient's treating physician); Clanton v. Von
Haam, 177
Ga. App. 694, 340 S.E.2d 627 (1986) (doctor declined to give late night medical advice over
telephone); Weaver v. U of M Bd. of Regents, 201 Mich. App. 239, 506 N.W.2d 264
(Mich. App.
1993) (telephone call to schedule an appointment; no medical advice sought); Cintron by
Bultron
v. New York Med. College, 597 N.Y.S.2d 705, 193 A.D.2d 551 (1993) ("on call" doctor,
who was
telephoned by attending doctor and concurred in attending doctor's opinion of needed treatment,
did not impose on "on call" doctor duty to treat the patient); Gibbons v. Hantman,
395 N.Y.S.2d
482, 58 A.D.2d 108 (1977), aff'd 403 N.Y.S.2d 895, 374 N.E.2d 1246
(1978)(general practitioner
instructed patient to return to surgeon who performed surgery for treatment of complication);
Roberts v. Hunter, 310 S.C. 364, 426 S.E.2d 797 (1993) (patient left emergency
room before "on
call" neurologist got there); Lection v. Dyll, 2000 WL 1612150, (Tex. App. 2000)
("on call"
neurologist listened over telephone to emergency room doctor's description of patient's symptoms
after patient had left emergency room); Day v. Harkins & Munoz, 961 S.W.2d
278 (Tex. App.
1997) ( physicians who contracted with arena to provide medical services during a rock concert
owed no duty to concertgoer who died from asthma attack after concert ended and doctors had
left the premises); Fought v. Solce, 821 S.W.2d 218 ( Tex. App. 1991) (telephone
conversation
between emergency doctor and consulting physician, who declined to see the patient);
Childs v.
Weis, 440 S.W.2d 104 (Tex. Civ. App. 1969) (doctor advised patient to seek treatment
from
another doctor); Oja v. Kin, 229 Mich. App. 184, 581 N.W. 2d 739 (1998) (analysis
of duty based
on doctor's contractual relationship with the hospital and intention that patient be third-party
beneficiary). For example, a doctor's not dealing directly with a patient does not preclude the
existence of a physician-patient relationship. See St. John v. Pope, 901 S.W.2d 420
(Tex. 1995)
("on call" internist consulted about emergency room patient recommended that patient be referred
either to a hospital with a neurosurgeon or to doctor who performed recent surgery). A doctor,
who instead of giving medical advice, suggests that a patient contact another doctor or transfer to
another facility does not form a physician-patient relationship. 901 S.W. 2d at 424. A
physician-patient relationship is consensual.Thus, where there is no ongoing
physician-patient relationship,
the physician's express or implied consent to advise or treat the patient is required for the
relationship to come into being. Stated otherwise, the doctor must take some affirmative action
with regard to treatment of a patient in order for the relationship to be established. See
Lopez v.
Aziz, 852 S.W.2d 303, 306-07 (Tex. App. 1993).

In the present case, the jury was instructed in this regard as follows:

"The physician-patient relationship is a consensual one in which the patient
knowingly
seeks the physician's assistance and the physician knowingly accepts the patient as a patient. The
relationship is contractual and wholly voluntary, and is created by agreement expressed or
implied.

"A physician-patient relationship may be created in any number of ways, including
the
act of a physician agreeing to give or giving advice to a patient in person or by telephone."

The factors Dr. Ohaebosim advances in support of his position that no physician-patient
relationship existed on July 22, 1992, between him and Nichelle Adams are the following:

(1) A physician-patient relationship did exist on that date between him and Mrs.
Adams.

(2) He had not seen, talked to, or treated Nichelle for approximately four years
prior to
July 22.

(3) He did not speak to Nichelle on July 22.

(4) His only knowledge of Nichelle's obstetric history was the information
provided by
Mrs. Adams during the telephone conversation.

(5) He no longer provided obstetrical care.

(6) He "took no action other than discussing, in very general terms," Nichelle's
condition
with Mrs. Adams.

(7) He did not consider Nichelle to be his patient, and Nichelle did not consider
him to be
her doctor.

Of these factors, the key to resolving this issue is Dr. Ohaebosim's own statement that he
discussed Nichelle's condition with Mrs. Adams. In doing so, he consented to give medical advice
about Nichelle's condition and he gave it. It is immaterial that he had not seen Nichelle for several
years. It is immaterial that he did not speak directly to Nichelle on July 22. It is not significant in
the circumstances that he states that he did not consider Nichelle to be his patient and that
Nichelle
did not consider him to be her doctor. He did consider Mrs. Adams to be his patient. He was a
family physician, and in years past he had treated her daughter, Nichelle. When Mrs. Adams
spoke
to him by telephone on July 22 and told him that Nichelle was 5-8 weeks pregnant and
experiencing abdominal pain, Dr. Ohaebosim did not say that he did not consider Nichelle to be
his
patient. He did not say that he no longer provided obstetrical care. Rather than suggesting to
Mrs. Adams that she contact another doctor at that time, he listened to what Mrs. Adams told him
about Nichelle and gave her his medical opinion in response. Dr. Ohaebosim's undertaking to
render medical advice as to Nichelle's condition gave rise to a physician-patient relationship.
Thus,
even if the earlier physician-patient relationship between Dr. Ohaebosim and Nichelle had lapsed
or
been extinguished, it was renewed.

The essential difference between the facts of this case and those cited by Dr. Ohaebosim is
his taking some action to give medical assistance. Typical of the cases he cites is Ortiz v.
Shah,
905 S.W.2d 609 (Tex. App. 1995). Ortiz was taken to the emergency room with a gunshot
wound. The emergency room nurse paged Dr. Shah, who was the "on call" surgeon. Before Dr.
Shah reached the hospital, Ortiz had been treated in the emergency room and taken to surgery,
where he died. Dr. Shah had no prior relationship with Ortiz. Dr. Shah never saw the patient
Ortiz. He never talked to him, and he never gave any advice to anyone about Ortiz's care. He
simply told the nurse who contacted him that he was on his way to the hospital. Dr. Shah had
taken no action that affected the medical treatment received by Ortiz. Dr. Ohaebosim, in contrast,
gave his medical opinion about Nichelle Adams' condition. His opinion was that she was
experiencing nothing unusual, which served to reassure Mrs. Adams about her daughter's
condition
and dissuade her from promptly seeking medical attention for Nichelle.

Dr. Ohaebosim contends that he declined to treat Nichelle. He did not decline to express
his medical opinion about her condition. Thus, he cannot be said to have declined to treat her. A
physician-patient relationship existed between Dr. Ohaebosim and Nichelle, and a duty of care
was
owed by Dr. Ohaebosim to Nichelle.

Dr. Ohaebosim also contends that plaintiffs' counsel's remarks in closing argument
prejudiced the jury and influenced its verdict.

Near the end of his closing argument, counsel for Mr. and Mrs. Adams suggested to the
jurors that they were responsible for setting the standard of care in their community and that their
decision would be of consequence for the community. Lifted from context, the remarks
complained of are as follows:

"And what you do here today will go out into the community and will reverberate through
this
community . . . long after you've left.

. . . .

"[I]f you return a verdict in favor of Dr. Ohaebosim, what you are basically telling
the
world is that everywhere else but in Wichita, Kansas this is the standard of care."

Defendant's counsel objected to both statements with the phrase "sending a message."
The
trial court overruled the first objection and ignored the second.

On cross-appeal, Dr. Ohaebosim contends that these arguments were improper. He
invites
the court to compare plaintiffs' counsel's remarks with remarks that the Court of Appeals found to
be improper in Masson v. Kansas City Power & Light Co., 7 Kan. App. 2d 344,
642 P.2d 113, rev.
denied 231 Kan. 801 (1982). He directs the court's attention to Masson's counsel
suggesting to
the jury that if it reached a verdict in his client's favor, "'you will have done that one
American duty
and sent a message to a utility that you are not going to put up with the kind of treatment of your
citizens, you have got a chance to be heard that an individual never has.' Emphasis added."
7 Kan.
App. 2d at 348.

Mr. and Mrs. Adams object that the partial transcript of closing argument, which includes
none of the closing argument on behalf of Dr. Ohaebosim, is uncertified and, in any event, does
not
satisfy the requirement that an adequate record on appeal be supplied by the complaining party.
We agree that this issue cannot be considered properly on the record before the court. An
appellant, in this case the cross-appellant, has the duty to designate a record sufficient to establish
the claimed error. Without an adequate record, the claim of alleged error fails. In re
B.M.B., 264
Kan. 417, 435, 955 P.2d 1302 (1998).

Judgment on wrongful death damages is reversed, and the matter is remanded to the
district court with directions to enter judgment against Dr. Ohaebosim for wrongful death
damages
in the amount of $100,000.